Exhibit 1.1
3,800,000 Shares
NATIONWIDE STAFFING, INC.
Common Stock
UNDERWRITING AGREEMENT
January __, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXX XXXXX XXXX XXXXXX INCORPORATED
LADENBURG XXXXXXXX & CO. INC.
As representatives of the
several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Nationwide Staffing, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell 3,800,000 shares of its Common Stock, $0.01 par
value, (the "FIRM SHARES") to the several underwriters named in Schedule I
hereto (the "UNDERWRITERS"). The Company also proposes to issue and sell to the
several Underwriters not more than an additional 570,000 shares of its Common
Stock, $0.01 par value, (the "ADDITIONAL SHARES") if requested by the
Underwriters as provided in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter referred to collectively as the "SHARES". The shares of
common stock of the Company to be outstanding after giving effect to the sales
contemplated hereby and the Founding Company Mergers (as hereinafter defined)
are hereinafter referred to as the "COMMON STOCK".
Simultaneously with the closing of the purchase of the Firm Shares by the
Underwriters, the Company will acquire in separate merger or exchange
transactions, all the Common Stock and ownership interests of the Founding
Companies (as hereinafter defined) (collectively, the "FOUNDING COMPANY
MERGERS"), the consideration for which will be a combination of cash and shares
of Common Stock as described in the Registration Statement (as hereinafter
defined).
SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with
the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "ACT"), a
registration statement on Form S-1, including a prospectus, relating to the
Shares. The registration statement, as amended at the time it became effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the Act, is
hereinafter referred to as the "REGISTRATION STATEMENT"; and the prospectus in
the form first used to confirm sales of Shares is hereinafter referred to as the
"PROSPECTUS". If the Company has filed or is required pursuant to the terms
hereof to file a registration statement pursuant to Rule 462(b) under the Act
registering additional shares of Common Stock (a "RULE 462(B) REGISTRATION
STATEMENT"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE AND LOCK-UP AGREEMENTS. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $______ (the "PURCHASE PRICE") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to 570,000 Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. You shall give any
such notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof, which date shall be a business
day (i) no earlier than two business days after such notice has been given (and,
in any event, no earlier than the Closing Date (as hereinafter defined)) and
(ii) no later than ten business days after such notice has been given. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Shares.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Prospectus without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding
the foregoing, during such period, (i) the Company may grant stock options
pursuant to the Company's existing stock option plan, (ii) the Company may issue
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and (iii) the Company
may issue shares under the Shelf
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Registration Statement (as hereinafter defined). The Company also agrees not to
file any registration statement with respect to any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
for a period of 180 days after the date of the Prospectus without the prior
written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation;
PROVIDED, HOWEVER, the Company may file a shelf registration statement (the
"SHELF REGISTRATION STATEMENT") to register up to an additional 3,000,000 shares
of Common Stock for use by the Company in connection with future acquisitions;
PROVIDED FURTHER, HOWEVER, that shares registered pursuant to the Shelf
Registration Statement will be subject to the limitations contained in the first
sentence of this paragraph. The Company shall, prior to or concurrently with the
execution of this Agreement, deliver an agreement executed by (i) each of the
directors and officers of the Company and (ii) each person or entity listed on
Schedule II hereto to the effect that such person will not, during the period
commencing on the date such person signs such agreement and ending 180 days
after the date of the Prospectus, without the prior written consent of
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, (A) engage in any of the
transactions described in the first sentence of this paragraph or (B) make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
SECTION 3. TERMS OF PUBLIC OFFERING. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. DELIVERY AND PAYMENT. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 9:00 A.M., New York City time, on
January __, 1998 (the "CLOSING DATE") at such place as you shall designate. The
Closing Date and the location of delivery of and payment for the Firm Shares may
be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to
be purchased by the Underwriters shall be made at such place as you shall
designate at 9:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "OPTION
CLOSING DATE"). Any such Option Closing Date and the location of delivery of and
payment for such Additional Shares may be varied by agreement between you and
the Company.
The Company authorizes Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
to have the Shares registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"), or such other name as Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation shall determine prior to the Closing Date or an
Option Closing Date, as the case may be. On the Closing Date or the applicable
Option Closing Date, as the case may be, against payment to the Company by the
Underwriters of the Purchase Price for the Shares by wire transfer of federal or
other funds immediately available in New York City, the Company will cause DTC
to credit these Shares to the account of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation at DTC for the benefit of the Underwriters.
SECTION 5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the
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issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purposes of which the Company is aware, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you four signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) To comply with the Act and the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and the Rules and Regulations of the Commission
thereunder, so as to permit the completion of the distribution of the Shares as
contemplated in this Agreement and the Prospectus. If during the period
specified in Section 5(d) above, any event shall occur or condition shall exist
as a result of which, in the opinion of counsel for the Underwriters, it becomes
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with
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applicable law, and to furnish to each Underwriter and to any dealer as many
copies thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; PROVIDED, HOWEVER, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Shares, in
any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending
December 31, 1998 that shall satisfy the provisions of Section 11(a) of the Act,
and to advise you in writing when such statement has been so made available.
(h) During the period of five years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) all costs of printing or producing this
Agreement and any other agreements or documents in connection with the offering,
purchase, sale or delivery of the Shares, (iv) all expenses in connection with
the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any preliminary and supplemental blue sky memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the filing fees and disbursements of counsel
for the Underwriters in connection with the review and clearance of the offering
of the Shares by the National Association of Securities Dealers, Inc., (vi) all
fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all costs
and expenses incident to the listing of the Shares on the New York Stock
Exchange ("NYSE"), (vii) the cost of printing certificates representing the
Shares, (viii) the costs and charges of any transfer agent, registrar or
depositary, and (ix) all other
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costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section 5(i).
(j) To use its best efforts to list, subject to notice of issuance, the
Shares on the NYSE and to maintain the listing of the Shares on the NYSE for a
period of three years after the date of this Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(m) To apply the net proceeds from the sale of the Shares as set forth in
the Prospectus and to file such reports with the Commission with respect to the
sale of the Shares and the application of the proceeds therefrom as may be
required in accordance with Rule 463 under the Act.
(n) To maintain a transfer agent and, if necessary under the jurisdiction
of the Company, a registrar for the Common Stock and, during the period
specified in Section 5(d) above, to file, on a timely basis, with the Commission
and the NYSE all reports and documents required to be filed under the Exchange
Act.
(o) To use its best efforts to: (i) satisfy all conditions precedent to
the consummation of the Founding Company Mergers as set forth in the Merger
Agreements (as hereinafter defined) with respect thereto, (ii) cause each other
party to the Merger Agreements to satisfy all conditions to the consummation of
the Founding Company Mergers and (iii) promptly notify the Underwriters of the
occurrence of any event which may result in the non-consummation of any of the
Founding Company Mergers on the Closing Date.
(p) Not to invest, or otherwise use, the proceeds received by the Company
from its sale of the Shares in such a manner as would require the Company or any
of the Founding Companies to register as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act").
(q) Not to take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected to
constitute, a stabilization or manipulation of the price of any securities of
the Company.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will
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become effective no later than 10:00 P.M., New York City time, on the date of
this Agreement; and no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act;
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) will comply in all material respects with the Act; and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 6(c) do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(d) Each of the Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties. Each of Alternative Solutions, Inc., ASAP Services, Inc., Cardinal
Services, Inc., Employment Enterprises, Inc., Global Technical Services, Inc.,
HP Services, Inc., Technology Plus, Inc., each of the affiliated group of
corporations collectively referred to in the Prospectus as the Xxxxx Group, and
each of their respective subsidiaries (collectively, the "FOUNDING COMPANIES")
has been duly organized and is validly existing as a corporation under the laws
of the jurisdiction of its incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties. As of the date hereof, the Company has no
subsidiaries except those listed in Exhibit 21.1 to the Registration Statement.
Each of the Company and its subsidiaries and each of the Founding Companies is
duly qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
7
business, prospects, financial condition or results of operations of the
Company, its subsidiaries and the Founding Companies, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company, any of its subsidiaries or any of the Founding Companies relating
to or entitling any person to purchase or otherwise to acquire any shares of the
capital stock of the Company, any of its subsidiaries or any of the Founding
Companies, except as otherwise disclosed in the Registration Statement.
(f) All the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights and have been issued in compliance
with federal and state securities laws; and the Shares have been duly authorized
and, when issued and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights. The shares of Common Stock to be issued in
connection with the Founding Company Mergers have been duly authorized and, upon
completion of the Founding Company Mergers in the manner described in the
Registration Statement, will be validly issued, fully paid and non-assessable
when issued as contemplated by the Merger Agreements and such shares to be
issued in the Founding Company Mergers will not be subject to any preemptive or
similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature. The
outstanding shares of capital stock of each of the Founding Companies have been
duly authorized and validly issued and are fully paid and non-assessable. Upon
consummation of the Founding Company Mergers, the outstanding shares of capital
stock of each of the Founding Companies will be owned by the Company, directly
or indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature and no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of capital stock
of or ownership interest in any of the Founding Companies will be outstanding.
(h) The information set forth under the caption "Capitalization" in the
Prospectus is true and correct and all of the Shares conform to the description
thereof contained in the Registration Statement. The form of certificate for the
Shares conforms to the corporate law of the jurisdiction of the Company's
incorporation. The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Registration Statement. The
description of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options and other rights granted thereunder, set forth in
the Prospectus accurately and fairly presents the information required to be
shown pursuant to the Act with respect to such plans, arrangements, options and
rights.
(i) None of the Company, any of its subsidiaries or any of the Founding
Companies is, or with the giving of notice or lapse of time or both, will be, in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument to which the
Company, any of its subsidiaries or any of the Founding Companies is a party or
by which the Company, any of its subsidiaries or any of the Founding Companies
8
or their respective property is bound, the violation or breach of which would be
material to the Company, its subsidiaries and the Founding Companies, taken as a
whole.
(j) The execution, delivery and performance of this Agreement and the
Merger Agreements by the Company, the compliance by the Company with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or any of the Founding
Companies or any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company, its subsidiaries and the Founding
Companies, taken as a whole, to which the Company, any of its subsidiaries or
any of the Founding Companies is a party or by which the Company, any of its
subsidiaries or any of the Founding Companies or their respective property is
bound, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any of its subsidiaries or any of
the Founding Companies or their respective property, which violation or conflict
would be material to the Company, its subsidiaries and the Founding Companies,
taken as a whole, or (iv) result in the suspension, termination or revocation of
any material Authorization (as hereinafter defined) of the Company, any of its
subsidiaries or any of the Founding Companies or any other impairment of the
rights of the holder of any such Authorization.
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company, any of its
subsidiaries or any of the Founding Companies is or could be a party or to which
any of their respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described; nor are there any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or filed as required.
(l) The Company, each of its subsidiaries and each of the Founding
Companies has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "AUTHORIZATION") of, and has made
all filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals as are
necessary to own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such Authorization or
to make any such filing or notice would not, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company, its subsidiaries and the Founding
Companies, taken as a whole. Each such Authorization is valid and in full force
and effect and the Company, each of its subsidiaries and each of the Founding
Companies is in compliance with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company, any of its subsidiaries or any
of the Founding Companies; except where such failure to be valid and in full
force and effect or to be in compliance, the occurrence of any such event or the
presence of any such restriction would not, singly or in the aggregate, have a
material
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adverse effect on the business, prospects, financial condition or results of
operations of the Company, its subsidiaries and the Founding Companies, taken as
a whole.
(m) This Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company.
(n) Xxxxxx Xxxxxxxx LLP, who have expressed their opinion with respect to
the financial statements (which term as used in this Agreement includes the
related notes thereto) and supporting schedules filed with the Commission as
part of the Registration Statement and included in the Prospectus, are
independent public accountants with respect to the Company, its subsidiaries and
the Founding Companies as required by the Act.
(o) The consolidated financial statements of the Company, the separate
financial statements of each of the Founding Companies and the combined
financial statements of the Company and the Founding Companies included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), in each case together with related schedules and notes, present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries, of each of the Founding
Companies and of the Company and the Founding Companies combined, respectively,
on the basis stated therein at the respective dates or for the respective
periods to which they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; the supporting schedules, if any, included in the Registration
Statement present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are, in
all material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company. The pro
forma financial statements of the Company and the Founding Companies and the
related notes thereto set forth in the Registration Statement and the Prospectus
(and any supplement or amendment thereto) have been prepared on a basis
consistent with the historical financial statements of the Company and the
Founding Companies, give effect to the assumptions used in the preparation
thereof on a reasonable basis and in good faith and present fairly the
historical and proposed transactions contemplated by the Registration Statement
and the Prospectus and the Merger Agreements (as hereinafter defined). Such pro
forma financial statements have been prepared in accordance with the applicable
requirements of Rule 11-02 of Regulation S-X promulgated by the Commission. The
other pro forma financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any supplement or amendment
thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with the pro forma financial statements.
(p) The Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(q) Except as described in the Registration Statement, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
10
(r) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company, its
subsidiaries and the Founding Companies, taken as a whole, (ii) there has not
been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries or, except as otherwise permitted by the
Merger Agreements, any of the Founding Companies, (iii) neither the Company or
any of its subsidiaries nor any of the Founding Companies has incurred any
material liability or obligation, direct or contingent, and (iv) there has not
been any material transaction entered into or any material transaction that is
probable of being entered into by the Company or any of the Founding Companies,
other than transactions in the ordinary course of business. Neither the Company
nor any of the Founding Companies has any material contingent obligations which
are not disclosed in the Company's or such Founding Company's financial
statements, as applicable, included in the Registration Statement.
(s) The Shares have been approved for listing on the NYSE, subject to
official notice of issuance.
(t) The Company, each of its subsidiaries and each of the Founding
Companies has good and marketable title to all of its properties and assets
reflected as owned in its financial statements (or as described in the
Registration Statement) described in Section 6(o) hereof, in each case free and
clear of any security interests, mortgages, liens, encumbrances, pledges,
charges or defects of any kind except those (i) reflected in such financial
statements (or as described in the Registration Statement), (ii) permitted by
the Merger Agreement, or (iii) which, in the aggregate,are not material in
amounts to the Company, its subsidiaries and the Founding Companies, taken as a
whole. The real property, improvements, equipment and personal property held
under lease by the Company or any subsidiary or any of the Founding Companies
are held under valid, binding and enforceable leases, conforming in all material
respects to the description thereof set forth in the Registration Statement.
(u) The Company and each of its subsidiaries and each of the Founding
Companies have filed all necessary federal, state, and local income and
franchise tax returns and have paid all taxes required to be paid by any of them
and, if due and payable, any related or similar assessment, fine or penalty
levied against any of them. The Company and each of its subsidiaries and each of
the Founding Companies have made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 6(o) hereof in respect of
all federal, state and local income and franchise taxes for all periods as to
which the tax liability of the Company, any of its subsidiaries or any Founding
Company has not been finally determined.
(v) The Company and each of its subsidiaries and each of the Founding
Companies are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company or any of its
subsidiaries nor any of the Founding Companies (i) has received notice from any
insurer or agent of such insurer that substantial capital improvements or other
material expenditures will have to be made in order to continue such insurance
or (ii) has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers at a cost that would not have a material adverse
effect on the business, prospects, financial conditions
11
or results of operations of the Company, its subsidiaries and the Founding
Companies, taken as a whole.
(w) The Company and each of the Founding Companies maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) The Company and each of the Founding Companies are in compliance in
all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder (collectively, "ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company or any of the Founding Companies would
have any liability; neither the Company nor any of the Founding Companies has
incurred nor expects to incur liability under (1) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan," or (2) Section 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "CODE"); and each "pension plan"
for which the Company or any of the Founding Companies would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by accident
or by failure to act, which would cause the loss of such qualification.
(y) The Company has entered into the agreements (the "MERGER AGREEMENTS")
set forth as Exhibits 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7 and 2.8 to the
Registration Statement, pursuant to which the Company will acquire in separate
mergers all of the capital stock and ownership interests of the Founding
Companies. Each of the Merger Agreements is in full force and effect, has been
duly and validly authorized, executed and delivered by the parties thereto, and
is valid and binding on the parties thereto in accordance with its terms and
none of the parties thereto is in default in any respect thereunder. A complete
and correct copy of each Merger Agreement (including Exhibits and Schedules) has
been delivered to the Representatives and no changes therein will be made
subsequent hereto and prior to the Closing Date.
(z) The representations and warranties made in each Merger Agreement by
the Company and by each of the Founding Companies and by each stockholder of
each of the Founding Companies are true and correct in all material respects,
except for such changes permitted or contemplated by, or waived pursuant to,
such Merger Agreement.
(aa) Neither the Company, nor to the Company's knowledge, any of its
affiliates or any of the Founding Companies or any of their affiliates, has
taken or may take, directly or indirectly, any action designed to cause or
result in, which has constituted or which reasonably may be expected to
constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the shares.
(bb) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
12
SECTION 7. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors, its officers and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein to act, by or on behalf of the indemnified
party.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter furnished in writing to
the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, in the case
of
13
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at
14
which the Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Shares under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Xxxxx X. Xxxxx and Xxxx X. Xxxxx, in their capacities as
the President and Chief Executive Officer and Senior Vice President and Chief
Financial Officer of the Company, respectively, confirming the matters set forth
in Sections 6(r), 8(a) and 8(b) and that the Company has complied with all of
the agreements and satisfied all of the conditions herein contained and required
to be complied with or satisfied by the Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company, its subsidiaries and the
Founding Companies, taken as a whole, (ii) there shall not have been any change
or any development involving a prospective change in the capital stock or in the
long-term debt of the Company, any of its subsidiaries or any of the Founding
Companies and (iii) none of the Company, any of its subsidiaries or any of the
Founding Companies shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(d)(i),
8(d)(ii) or 8(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date (provided that
the opinions related to
15
the Founding Companies may be dated the date of the "Closing", as defined in the
Merger Agreements), of Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the Company,
to the effect that:
(i) each of the Company and its subsidiaries and each of the
Founding Companies has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its
business as described in the Prospectus and to own, lease and operate its
respective properties;
(ii) each of the Company and its subsidiaries and each of the
Founding Companies is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company, its subsidiaries and
the Founding Companies, taken as a whole;
(iii) to such counsel's knowledge, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sales or liens granted or issued by the Company, any of its
subsidiaries or any of the Founding Companies relating to or entitling any
person to purchase or otherwise acquire any shares of the capital stock of
the Company, any of its subsidiaries or any of the Founding Companies
except as otherwise disclosed in the Registration Statement;
(iv) all the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights;
(v) the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights; and, the shares of Common Stock to be issued in connection with
the Founding Company Mergers have been duly authorized and will be validly
issued, fully paid and non-assessable when issued as contemplated by the
Merger Agreements and such shares to be issued in the Founding Company
Mergers will not be subject to any preemptive or similar rights;
(vi) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned of record by the Company,
directly or indirectly through one or more subsidiaries, to such counsel's
knowledge, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature; and the outstanding shares
of capital stock of each of the Founding Companies have been duly
authorized and validly issued and are fully paid and non-assessable and,
upon consummation of the Founding Company Mergers, will be owned by the
Company, directly or indirectly through one or more subsidiaries, to such
counsel's knowledge, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature and, to such counsel's
knowledge, no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
any shares of capital stock of or other ownership interest in any of the
Founding Companies will be outstanding;
16
(vii) this Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company;
(viii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus; the
description of the Company's stock option, stock bonus and other stock
plans or arrangements, and any options or other rights granted and
exercised thereunder, set forth in the Prospectus accurately and fairly
presents the information required to be shown with respect to such plans,
arrangements, options and rights;
(ix) the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's knowledge
after due inquiry, pending before or contemplated by the Commission;
(x) the statements under the captions "Regulation", "Shares Eligible
for Future Sale", "Business--Legal and Administrative Proceedings",
"Management--Executive Compensation; Employment Agreements;
Covenants-Not-to-Compete", "Management--1997 Stock Awards Plan", "Risk
Factors--Anti-takeover Effect of Certain Charter Provisions", "Certain
Transactions", "Description of Capital Stock", "Business--Intellectual
Property" and "Underwriting" in the Prospectus and Items 14 and 15 of Part
II of the Registration Statement, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings;
(xi) none of the Company, any of its subsidiaries or any of the
Founding Companies is in violation of its respective charter or by-laws
and, to the best of such counsel's knowledge after due inquiry, neither
the Company, any of its subsidiaries or any of the Founding Companies is
in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which the Company, any of its
subsidiaries or any of the Founding Companies is a party or by which the
Company, any of its subsidiaries or any of the Founding Companies or their
respective property is bound, the violation or breach of which would be
material to the Company, its subsidiaries and the Founding Companies,
taken as a whole;
(xii) the execution, delivery and performance of this Agreement and
of the Merger Agreements by the Company, the compliance by the Company
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (B) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
subsidiaries or of any of the Founding Companies or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company, its subsidiaries and the Founding Companies,
taken as a whole, to which the Company, any of its subsidiaries or any of
the Founding Companies is a party or by which the Company, any of its
subsidiaries or any of the Founding Companies or their respective property
is bound, (C) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the
17
Company, any of its subsidiaries or any of the Founding Companies or their
respective property or (D) result in the suspension, termination or
revocation of any Authorization of the Company, any of its subsidiaries or
any of the Founding Companies or any other impairment of the rights of the
holder of any such Authorization;
(xiii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company, any
of its subsidiaries or any of the Founding Companies is or could be a
party or to which any of their respective property is or could be subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(xiv) the Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended;
(xv) to the best of such counsel's knowledge after due inquiry and
except as disclosed in the Registration Statement, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or
to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement;
(xvi) each of the Merger Agreements has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the
Company and the other parties thereto, in accordance with its terms and,
to the best knowledge of such counsel, none of the parties thereto is in
default in any respect thereunder; the Certificates or Articles of Merger
referred to in the Merger Agreements, assuming the due filing thereof with
the appropriate regulatory authorities, will cause the statutory merger of
each of the Founding Companies with the respective subsidiaries of the
Company that are parties thereto;
(xvii) upon the filing of the appropriate documents with the
appropriate governmental entities, the Founding Company Mergers will
become effective pursuant to the Merger Agreements and applicable state
law; and
(xviii) (A) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements and
other financial data included therein as to which no opinion need be
expressed) comply as to form with the Act, (B) such counsel has no reason
to believe that at the time the Registration Statement became effective
or, on the date of this Agreement, the Registration Statement and the
Prospectus included therein (except for the financial statements and other
financial data as to which such counsel need not express any belief)
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) such counsel has no reason to
believe that the Prospectus, as amended or supplemented, if applicable
(except for the financial statements and other financial data, as
aforesaid) contains any untrue statement of a material fact or omits to
state a material fact
18
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The opinion of Xxxxxxxxx & Xxxxxxxxx, L.L.P. described in this Section
8(e) shall be rendered to you at the request of the Company and shall so state
therein. In rendering such opinion, Xxxxxxxxx & Xxxxxxxxx, L.L.P. may provide
that its opinion is limited to matters governed by the laws of Texas and the
General Corporation Law of the State of Delaware, and the Federal securities
laws of the United States, and may rely on counsel to one or more of the
Founding Companies with respect to matters related to the Founding Companies;
provided that, in lieu of such reliance, Xxxxxxxxx & Xxxxxxxxx, L.L.P. may
provide separate opinions of such counsel so long as such opinions are addressed
to, or may be relied upon by, the Underwriters, and further provided that, in
each case, Xxxxxxxxx & Xxxxxxxxx, L.L.P. shall state that they believe that they
and the Underwriters are justified in relying on such other counsel.
(f) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Fulbright & Xxxxxxxx L.L.P., counsel for the Underwriters, as
to the matters referred to in Sections 8(e)(v) (but only with respect to the
Shares), 8(e)(vii), 8(e)(x) (but only with respect to the statements under the
caption "Description of Capital Stock" and "Underwriting") and 8(e)(xviii).
In giving such opinions with respect to the matters covered by Section
8(e)(xviii), Xxxxxxxxx & Xxxxxxxxx, L.L.P. and Fulbright & Xxxxxxxx L.L.P. may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification except as specified.
(g) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Xxxxxx Xxxxxxxx LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) The Company shall have delivered to you the agreements specified in
the last sentence of the second paragraph of Section 2 hereof, which agreements
shall be in full force and effect on the Closing Date.
(i) The Shares shall have been duly listed, subject to notice of issuance,
on the NYSE.
(j) The Company shall not have failed on or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company on or prior to the Closing Date.
(k) With respect to the Founding Company Mergers:
(i) each condition to the obligations of the Company set forth in
the Merger Agreements shall have been satisfied, without waiver or
modification, except as may be approved by the Underwriters;
(ii) each certificate delivered to the Company pursuant to each
Merger Agreement shall have also been delivered to the Underwriters; and
19
(iii) counsel for each of the Founding Companies shall have
furnished to the Underwriters a letter, in form and substance satisfactory
to the Underwriters, to the effect that they are entitled to rely on the
such opinion of counsel delivered to the Company pursuant to each Merger
Agreement as if such opinion were addressed to them.
(l) The Merger Agreements shall be in full force and effect and none of
the parties thereto shall be in default thereunder. The Underwriters shall have
received assurances reasonably satisfactory to them that all documents required
to be filed in their respective states in order to effectuate the consummation
of each Founding Company Merger shall have been approved for filing by the
appropriate authorities in each state and that all of such merger documents
shall be filed substantially concurrently with the consummation of the
transactions pursuant to this Agreement.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 9. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company, its
subsidiaries and the Founding Companies, taken as a whole, (v) the declaration
of a banking moratorium by either federal or New York state authorities or (vi)
the taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its
20
name in Schedule I bears to the total number of Firm Shares which all the
non-defaulting Underwriters have agreed to purchase, or in such other proportion
as you may specify, to purchase the Firm Shares or Additional Shares, as the
case may be, which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; PROVIDED that in no event shall the number
of Firm Shares or Additional Shares, as the case may be, which any Underwriter
has agreed to purchase pursuant to Section 2 hereof be increased pursuant to
this Section 9 by an amount in excess of one-ninth of such number of Firm Shares
or Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Firm Shares are not
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on such
date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase such Additional Shares or (ii) purchase
not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
SECTION 10. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to Nationwide
Staffing, Inc., 000 Xxxxxx, Xxxxx 0000, Xxxxxxx,Xxxxx 00000, Attention: Xxxxx X.
Xxxxx, and (ii) if to any Underwriter or to you, to you c/x Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination of
this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(i) hereof. The Company also agrees to reimburse the
several Underwriters, their directors and officers and any persons controlling
any of the Underwriters for any and all fees and expenses (including, without
limitation, the fees and
21
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, the
Underwriters' directors and officers, any controlling persons referred to
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
22
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
NATIONWIDE STAFFING, INC.
By: __________________
Name: __________________
Title: __________________
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXX XXXXX XXXX XXXXXX INCORPORATED
LADENBURG XXXXXXXX & CO. INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: __________________________
Name: __________________________
Title: __________________________
SCHEDULE I
----------
Number of Firm Shares
Underwriters to be Purchased
------------------- -------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxx Xxxxx Xxxx Xxxxxx Incorporated
Ladenburg Xxxxxxxx & Co. Inc.
-----------
Total 3,800,000
SCHEDULE II
PERSONS AND ENTITIES TO SIGN LOCK-UP AGREEMENTS
WJG Capital, L.L.C. Energy Consulting Services Limited
Xxxxx, Xxxxxxxx & Company Xxxxxx X. Xxxxxxx III
Xxxxx Xxxx Xxxxxxx Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx Xxxxx X. Xxxxxx
Norton Family Trust Xxxxx X. Xxxxxxx, Xx.
Xxxxx X. Xxxx Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx Fairly Good Investment Partners
Xxxxx Xxxxx Xxxxxx Xxxx & Xxxxx Xxxxxxxxxx Family Investment
Partnership, Ltd.
Xxxx Xxxxxxx Xxxxx Xxxxxx Xxxxxxx
L. Xxxx Xxxxx Raymar, Inc.
The Global Group, Inc. Xxxxx X. Xxxxxxx III
Xxxxxx Xxxx Xxxx X. Xxxxxx
Xxxxx Xxxx Xxxxxxx X. Xxxxxxxxx
Xxxx Xxxx Xxx Xxxxxxxxxxx
Xxxx Xxxxxxxxx Xxxxxx X. Xxxxx
Xxxx Xxxxx Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxx Xxxxxx X. Xxxxxx
Xxxx Xxxxxxxx, Xx. Xxxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx Heptagon Investments, Ltd.
Xxxx Xxxxxxxx, Xx. Trust Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxxxx Xxxxx Xxxxxx
Newbury Employment, Inc. Xxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxx Xxxxxx X. Xxxxxx
Xxxx Xxxxxxxx L. Xxxxxxx Xxxxxxx
Say Financial Services, Inc. Xxxxxx X. Xxxxxx
Xxxxxxx X. XxXxxx Xxxxx Xxxxx
